US v. Marchena-Silvestre

Filing

OPINION issued by William J. Kayatta, Jr., Appellate Judge; Bruce M. Selya, Appellate Judge and Timothy Belcher Dyk,* Appellate Judge. Published. *Of the Federal Circuit, sitting by designation. [14-1404]

Case: 14-1404

Document: 00116898790

Page: 1

Date Filed: 10/06/2015

Entry ID: 5943159

United States Court of Appeals
For the First Circuit
No. 14-1404
UNITED STATES OF AMERICA,
Appellee,
v.
DAN CARLOS MARCHENA-SILVESTRE,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Kayatta, Selya, and Dyk,*
Circuit Judges.

Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
Linda J. Thompson, with whom Robert F. Hennessy and Thompson
& Thompson, PC, were on brief, for appellant.

October 6, 2015

____________________
*Of the Federal Circuit, sitting by designation.

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KAYATTA, Circuit Judge.
("Marchena-Silvestre")

appeals

Date Filed: 10/06/2015

Entry ID: 5943159

Dan Carlos Marchena-Silvestre

his

seventy-two

month

sentence

following his guilty plea to a charge of unlawfully possessing
automatic

weapons.

After

careful

review

of

the

record,

we

conclude that the district court's sentencing determination was
infected by plain error.
I.

Background

Since Marchena-Silvestre's sentence followed a guilty
plea, we draw the facts from the plea agreement, the change-ofplea colloquy, the presentence investigation report (PSR), and the
sentencing hearing transcript.

See United States v. Almonte-

Nuñez, 771 F.3d 84, 86 (1st Cir. 2014).

We rehearse only the

facts necessary to form a basis for our analysis.
A.

The Offense and Indictment
On October 24, 2013, Puerto Rico law enforcement agents

searched

Marchena-Silvestre's

apartment

pursuant

to

a

search

warrant.

The agents discovered and seized the following arsenal

of firearms and ammunition: (1) an AR-15 assault rifle, unlawfully
modified to fire in full automatic mode, equipped with an unlawful
short barrel, and loaded with one round in the chamber and thirtyseven rounds in the magazine; (2) a Glock pistol, unlawfully
modified to fire in full automatic mode, loaded with one round in
the

chamber

and

twelve

rounds

in

the

magazine;

and

additional 127 rounds of ammunition for the two firearms.
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(3)

an

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After waiving his Miranda rights, Marchena-Silvestre
admitted that the firearms and ammunition belonged to him, that he
purchased both firearms, and that he also purchased and installed
a metal chip that enabled the Glock pistol to fire in full
automatic mode.

The investigating agents also discovered that the

Glock pistol had been stolen from its registered owner.
a

week

after

the

seizure,

a

federal

grand

jury

Less than

returned

an

indictment charging Marchena-Silvestre with possessing a machine
gun in violation of 18 U.S.C. § 922(o) and possessing a stolen
firearm in violation of 18 U.S.C. § 922(j).
B.

The Plea Agreement
Pursuant to a written plea agreement (the Agreement)

with the government, Marchena-Silvestre agreed to plead guilty to
possessing the machine gun.

In turn, the government agreed to

dismiss the charge that he possessed a stolen firearm, so long as
Marchena-Silvestre complied with the Agreement's terms.
Paragraph 7 of the Agreement, entitled "Applicability of
United

States

Sentencing

Guidelines,"

contained

a

chart

of

"Sentencing Guidelines Calculations" for 18 U.S.C. § 922(o) that
Marchena-Silvestre and the government agreed to "submit" to the
court.

The chart included a base offense level of 18, see U.S.S.G.

§ 2K2.1(a)(5),

a

firearm,

U.S.S.G.

see

two-point

upward

enhancement

§ 2K2.1(b)(4)(A),

and

for
a

a

stolen

three-point

reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1,
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to arrive at a total adjusted offense level of 17.

Since the

parties did not agree to a criminal history category, the chart
then

set

out

the

applicable

guideline

sentencing

ranges

for

criminal history categories I (24–30 months) through VI (51–63
months).

Paragraph

9,

entitled

"Sentence

Recommendation,"

provided that "the government reserves the right to request a term
of

imprisonment

guidelines

equal

to

and

the

range

the

higher

defendant

end

will

of

the

request

applicable
a

term

of

imprisonment equal to the lower end of the applicable guidelines
range," and that "any recommendation by either party for a term of
imprisonment above or below the stipulated sentence recommendation
constitutes a material breach of the . . . Agreement."

The

stipulated sentencing recommendations did not bind the district
court, and Marchena-Silvestre only retained the right to appeal in
the event that the district court did not sentence him within the
stipulated guideline sentencing range.
C.

The Presentence Investigation Report
The district court accepted Marchena-Silvestre's guilty

plea at the plea colloquy, and instructed the probation department
to

submit

a

PSR.

The

PSR

departed

from

the

Agreement

by

recommending a base offense level of 20 rather than 18, due to the
added

consideration

that

the

defendant's

unlawful

use

of

controlled substances made him a "prohibited person" under the
guidelines.

See U.S.S.G. § 2K2.1(a)(4)(B).
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The PSR applied the

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same two base level adjustments as recommended by the Agreement,
resulting in a total offense level of 19 (rather than 17 as
calculated in the Agreement).
The
history:

PSR

also

detailed

Marchena-Silvestre's

criminal

In 2009, he was convicted of carrying a firearm in

violation of Puerto Rico's Weapons Law (a misdemeanor for which he
was

fined

$300);

and

in

2013

he

was

convicted

of

illegally

occupying property owned by the Puerto Rico Housing Department,
resulting in a $50 fine.

The two convictions resulted in a

criminal history category of I.

Cross-referencing that category

with the total offense level of 19, the PSR recommended a guideline
sentencing range of 30 to 37 months.
(Sentencing

Table).

In

his

See U.S.S.G. ch. 5 pt. A

sentencing

memorandum,

Marchena-

Silvestre stated that he had "no objections" to the PSR.
D.

The Sentencing Hearing
The

sentencing

hearing

began

with

the

government

informing the court that it would request a sentence at the "high
end range of the guideline sentence."

The court proceeded to

summarize the facts of the case based on the PSR, noting the
serious and illegal arsenal at the heart of the case.

The court

then moved to reviewing Marchena-Silvestre's criminal history,
noting

that

a

combination

of

prior

offenses

without

serious

penalties "is what really strikes you when you see this kind of
thing."

The court noted what it thought were two prior firearms
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charges: one a misdemeanor conviction for carrying a firearm
without a license, the other an arrest for carrying what the court
described as a "nine millimeter nickel plated pistol."

In fact,

the second charge as described in the PSR was for carrying a
"nickel

magazine

loaded

with

three

rounds

of

.9

caliber

ammunition," a charge dropped for lack of probable cause.

No one

corrected the court's misreading.
Given a turn to speak again before the court calculated
a guideline sentencing range, the prosecutor claimed that he stood
by the terms of the Agreement, yet he recommended a 37-month
sentence, equaling the high end of the PSR's recommended range
(rather than the 30-month high end as specified in the Agreement's
chart for a criminal history category of I).
During

the

ensuing

discussion,

the

district

court

inexplicably announced that Marchena-Silvestre "has a base offense
level of 19," which was both wrong and contrary to any information
that was before the court.
any total offense level.

The court also neglected to calculate
The court made clear that it did not

regard the case as a guidelines "heartland" case, and that it felt
a lengthier sentence was needed because of the high incidence of
criminal violence in the Commonwealth for which there was too
little accountability.

It recited the "factors to be considered

in imposing a sentence" listed in 18 U.S.C. § 3553(a), and made
clear that it felt that a "variance is in order under [the] 3553(a)
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factors."

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The court then announced its sentence by beginning with

a guideline sentencing range, as follows:
Range is 31 to 41 months. The fine range
is 6,000 to 60 thousand, which means nothing
in [this] case.
Plus supervised release of
one to three years.
Statutory maximum, ten
years. I think that this case, because of the
kind of gun, ammunition involved, his prior
experiences before the law with guns, requires
a sentence of at least 72 months is the
sentence I'm imposing.
Unfortunately, the announced guideline sentencing range
corresponded to nothing in the PSR nor, for that matter, to any
offense level in the sentencing guidelines.

See U.S.S.G. ch. 5

pt.

adopted

A

(Sentencing

Table).

Had

the

court

the

PSR's

recommendation, the range should have been 30 to 37 months.

Even

more

even

unfortunately,

no

one

in

the

courtroom--including

defense counsel--corrected the court.
Piling error on top of errors, when the district court
submitted its written statement of reasons, it wrote that the total
offense level was 19, that the criminal history category was I,
and that the guideline sentencing range was 33 to 41 months (not
31 to 41 months as it had stated earlier, or 30 to 37 months as
recommended by the PSR).

A guideline sentencing range of 33 to

41 months, however, applies to either a total offense level of 20
with a criminal history category of I, or a total offense level of
19 with a criminal history category of II.
A (Sentencing Table).

See U.S.S.G. ch. 5 pt.

And, of course, that guideline sentencing
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range includes a higher floor than the (also incorrect) range
announced at the hearing.1
II.

Analysis

On appeal, Marchena-Silvestre says that he is entitled
to resentencing for three reasons:

(1) his sentencing hearing was

procedurally flawed, (2) his above-guideline 72-month imprisonment
term

is

substantively

materially

breached

unreasonable,

the

plea

and

agreement.

(3)

the

Because

government
Marchena-

Silvestre did not raise these objections in the district court, we
review

only

for

plain

error.

See

United

States

v.

Dávila-

González, 595 F.3d 42, 47 (1st Cir. 2010); see also United States
v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).

The plain

error standard of review places the burden on Marchena-Silvestre
to make four showings in order to justify reversal:

"(1) that an

error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation

1

Our court has generally given controlling weight to the
district court's oral explanation of a sentence when it differs
from its written explanation. See United States v. Flemmi, 402
F.3d 79, 96 n.26 (1st Cir. 2005); United States v. Muniz, 49 F.3d
36, 42 n.5 (1st Cir. 1995). Here, since both the oral and written
guidelines calculations contain clear and obvious error, we need
not choose which controls.
We simply note that the written
explanation only compounds the confusion arising from the
incorrect calculation at the sentencing hearing.
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of judicial proceedings."

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United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001).
A.

Failure to Calculate the Guideline Sentencing Range
"'[F]ailing to calculate (or improperly calculating) the

Guidelines range' is a 'significant procedural error.'"

United

States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (alteration in
original) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
The court's calculation failures in this case were obvious and
several.

It

neglected

to

calculate

a

total

offense

level,

misstated the base offense level, and settled on a non-existent
guideline sentencing range extending four months longer than the
upper end of the range recommended by the PSR.
These errors and their obviousness easily satisfy the
first two requirements for a successful plain error challenge.
The closer question is whether Marchena-Silvestre also satisfies
the requirement that he show that the obvious errors "affected
[his] substantial rights."

Duarte, 246 F.3d at 60.

In the

sentencing context, we construe this requirement as imposing a
"burden of showing a reasonable likelihood 'that, but for the
error, the district court would have imposed a different, more
favorable sentence.'"

United States v. Ortiz, 741 F.3d 288, 293-

94 (1st Cir. 2014) (quoting United States v. Turbides-Leonardo,
468 F.3d 34, 39 (1st Cir. 2006)).

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For the following reasons, we

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Marchena-Silvestre

has

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shown

such

a

Entry ID: 5943159

reasonable

likelihood.
We begin with the role of the guidelines calculation
itself.

We need tread no new ground in pointing out what precedent

already makes clear about the required nature of that calculation:
Although the Sentencing Guidelines are
now advisory rather than mandatory, district
courts are still required to 'begin all
sentencing
proceedings
by
correctly
calculating the applicable Guidelines range.'
Gall, 552 U.S. at 49. Only after a court has
correctly
calculated
the
applicable
[guideline sentencing range] and evaluated the
factors set out in 18 U.S.C. § 3553(a) can it
properly exercise its discretion to sentence
a defendant within or outside the applicable
Guidelines range.
Far from a meaningless
exercise, the requirement that the district
court begin by correctly calculating the
[guideline
sentencing
range]
serves
an
important function; it provides 'a framework
or starting point' to guide the exercise of
the court's discretion.
Freeman v. United
States, 131 S. Ct. 2685, 2692 (2011).
Starting with such a framework gives the
sentencing judge 'an idea of the sentences
imposed on equivalent offenders elsewhere,'
which in turn 'promote[s] uniformity and
fairness' in sentencing.
United States v.
Rodríguez, 630 F.3d 39, 41 (1st Cir. 2010).
Thus, even though sentencing judges are free
to
impose
non-Guidelines
sentences
in
appropriate cases, 'district courts must still
give respectful consideration to the nowadvisory Guidelines (and their accompanying
policy statements).'
Pepper v. United
States, 131 S. Ct. 1229, 1247 (2011).
United States v. Millán-Isaac, 749 F.3d 57, 66-67 (1st Cir. 2014).

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It is therefore fair to presume in the ordinary case
that there is a reasonable likelihood that any variance added onto
that starting point moves the end point beyond where it would have
been but for the error in the starting point.

See Ortiz, 741 F.3d

at 294 ("[T]here is every reason to believe that the court used
the [guideline sentencing range] as an anchoring point from which
to

vary.");

sentencing

Rodríguez,
judge

must

630

F.3d

"start

out

at
by

41

(explaining

calculating

that

the

the

proper

Guidelines range--a step so critical that a calculation error will
usually require resentencing").
This is not to say that every error in calculating the
guideline sentencing range calls for reversal under plain error
analysis, or even under harmless error analysis.

See United

States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (declining to
resolve a dispute over whether the court erroneously applied an
upward departure under the guidelines because "the district court
stated that it would have reached the same result in a nonGuideline setting"); United States v. Gerhard, 615 F.3d 7, 35 (1st
Cir. 2010) (similar); cf. Williams v. United States, 503 U.S. 193,
202-03 (1992) (explaining that remand is required under harmless
error analysis "only if the sentence was imposed as a result of an
incorrect application of the Guidelines" (internal quotation marks
omitted)).

A sentencing court might, for example, make it clear

that it was aware of a possible flaw in its calculation of a
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guideline sentencing range, and explain that its sentence would
nevertheless be the same under an alternative analysis pressed by
the party that ultimately appealed.

See, e.g, Tavares, 705 F.3d

at 24-28 (deeming district court's error in not conclusively
choosing between the parties' proposed sentencing ranges harmless
because the court indicated its understanding of the competing
calculations and then stated it would elect a sentence above either
range).

Here, though, there is no such explanation by the court.

Instead the government asks us to infer such a view, relying on
the small number of months by which the court erred, the relatively
much greater size of the variance, and the round year nature of
the

sentence,

all

on

top

of

a

fair

description

of

the

section 3553(a) factors and a clear intent to issue a variant
sentence.
While

the

case

for

such

an

inference

is

certainly

plausible, we think it falls short of serving as an adequate
substitute for a "clear statement by the court" that would be
sufficient to "diminish the potential of the [guideline sentencing
range] to influence the sentence actually imposed."

Ortiz, 741

F.3d at 294 (citing United States v. McGhee, 651 F.3d 153, 159
(1st Cir. 2011)).

Here, the district court attempted to calculate

a guideline sentencing range, described this case by reference to
its differences from the "heartland of cases" within that range,
and, throughout the hearing, recited a litany of justifications
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under section 3553(a) for varying upward from that range given the
specific characteristics of the defendant and the crime.

There

is nothing wrong with this approach--unless one starts at the wrong
yard marker.
It is, of course, true that the district court declared
before hearing any argument that this was "not a guideline case."
Seizing

on

this

declaration,
could

the

not

government

have

argues

materially

that

the

affected

the

incorrect

calculation

sentence.

This argument directly conflicts with the government's

own assertions--with which we agree--that the court "did consider
the Guidelines," and then exercised its discretion to vary upward.
And we have already explained that the district court's repeated
references to the guidelines and the "heartland of cases" within
those guidelines indicate to us that the guidelines served as a
starting point from which the court imposed an upward variance.
It follows that if the district court had correctly calculated a
lower

starting

point,

then

there

is

at

least

a

reasonable

likelihood that it would have landed on a sentence shorter than 72
months (even if just a few months shorter).

Nothing in this record

provides any indication clear enough to overbear the probative
force of this logical presumption.

See Ortiz, 741 F.3d at 294

(finding that since "the record contain[ed] no suggestion that the
court

considered

the

dimensions

of

the

[guideline

sentencing

range] to be irrelevant," an error in calculating defendant's
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criminal history score caused plain error); United States v.
Fagans, 406 F.3d 138, 141 (2d Cir. 2005) (explaining that "an
incorrect calculation of the applicable Guidelines range will
taint not only a Guidelines sentence, . . . but also a nonGuidelines sentence, which may have been explicitly selected with
what was thought to be the applicable Guidelines range as a frame
of reference").
Turning to the last prong of plain error review, we need
not tarry.
the

The district court's repeated failures to calculate

guideline

sentencing

range

correctly,

or

to

explain

its

calculation, all in a fashion that created a higher range than was
recommended by either the PSR or the Agreement, compromised the
fairness and integrity of the proceeding.
736.

See Olano, 507 U.S. at

We therefore conclude that, under plain error review, we

should exercise our discretion to vacate Marchena-Silvestre's
sentence and afford him a new sentencing hearing.

See United

States v. González-Castillo, 562 F.3d 80, 84 (1st Cir. 2009).2

2

Since resentencing will be required, we need not address
Marchena-Silvestre's arguments that the district court's choice of
sentence rested on a clearly erroneous fact, that its explanation
was inadequate, or that the 72-month imprisonment term is
substantively unreasonable. See Millán-Isaac, 749 F.3d at 73 n.9.
We also need not address Marchena-Silvestre's argument that an
abuse of discretion standard of review would apply had we reached
the issue of substantive reasonableness.
Cf. United States v.
Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).
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Alleged Breach of the Plea Agreement
Our

decision

to

remand

for

resentencing

due

to

procedural error does not end our analysis, because the parties
disagree concerning the meaning of the plea agreement that will
still apply on resentencing, and we typically grant specific
performance as a remedy where the government's breach of a plea
agreement leads to reversible error.
55 F.3d 9, 14 (1st Cir. 1995).

See United States v. Clark,

We therefore address the claimed

breach, reviewing once again for plain error.

In so doing, we

construe the terms and conditions in plea agreements in accordance
with traditional principles of contract law, see United States v.
Murphy-Cordero, 715 F.3d 398, 400 (1st Cir. 2013) (interpreting a
waiver of appeal clause), looking outside the document only as
necessary to provide illuminating context or resolve ambiguities
in the writing, see United States v. Alegria, 192 F.3d 179, 183
(1st Cir. 1999).
The
existence

of

"applicable

parties
a

appear

to

agree--as

turns

on

the

breach

guidelines

range"

in

Recommendation") of the Agreement.

do

we--that

meaning

of

Paragraph

9

the

the

phrase

("Sentence

In Marchena-Silvestre's view,

the phrase refers to the range identified by the Agreement itself,
in the chart in Paragraph 7 ("Applicability of United States
Sentencing

Guidelines"),

thereby

requiring

the

recommend a sentence no greater than 30 months.
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government

to

The words of the

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Agreement strongly support this view.
the

undefined

term

"applicable

Entry ID: 5943159

One naturally presumes that

guidelines

range"

would

refer

precisely to the guideline settlement ranges set forth in the
immediately prior section of the Agreement called "Applicability
of United States Sentencing Guidelines."

If this were not the

intended cross-reference, and one must look outside the Agreement
to figure out the applicable guideline sentencing range, one would
be left to ask:

Does it refer to the ranges specified in the PSR,

or to those found by the district court?
The government in its brief answers this question by
insisting

that

the

"applicable

guidelines

range"

means

"the

advisory Guidelines' range found applicable at the sentencing
hearing."

But the government itself adopted as its recommendation

the range set forth in the PSR before the district court found the
applicable

range.

Nor

did

the

government

revise

its

recommendation when it learned of the court's different (and
higher)

calculation.

Given

this

sequence

of

events,

the

government's argument is like the thirteenth chime of a clock:
you not only know it's wrong, but it causes you to wonder about
everything you heard before.
Returning to the Agreement itself, we observe that if
the government were correct, the chart in Paragraph 7, which
occupies nearly an entire page of the Agreement, would have no
apparent

purpose.

Conversely,
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under

Marchena-Silvestre's

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reading,

it

"applicable

serves

the

sentencing

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obvious

purpose

guidelines"

that

of

Entry ID: 5943159

setting

limited

the

sentences the parties could recommend at the hearing.

out

the

range

of

Confronted

with this observation at oral argument, the government offered
that the chart's purpose was "transparency" for the defendant.
But if this construction of the chart as a gratuitous, unnecessary,
and non-binding educational illustration were correct, we think
the chart would only be capable of confusing the defendant and
setting an expectation that could both go unmet by the government's
recommendation later on and provide possible cause for a withdrawal
of the plea.
Marchena-Silvestre's reading also finds strong support
in the repeated reference to a stipulation between the parties in
Paragraphs 8 and 9.

After Paragraph 7's chart sets out a guideline

sentencing range for each of the six criminal history categories,
all based on a total offense level of 17, Paragraph 8 states that
"[t]he parties do not stipulate as to any Criminal History Category
for Defendant."

It would be entirely unnecessary to make such a

declaration unless the parties did stipulate to the other variable
in the chart's calculations, i.e., the total offense level of 17.
Paragraph 9 then goes on to state that "[t]he parties agree that
any recommendation . . . below or above the stipulated sentence
recommendation constitutes a material breach" of the Agreement.
(Emphasis supplied).

From this language one naturally concludes
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that, if the district court selected a criminal history category
of I, the parties would be prohibited from arguing for a sentence
outside

the

range

provided

in

the

corresponding

section

of

Paragraph 7's chart.
We recently put the government on notice that its similar
reading

of

an

analogous

plea

Almonte-Nuñez, 771 F.3d at 89.

agreement

was

"anfractuous."

In Almonte-Nuñez, we were asked

whether "the defendant [was] foreclosed from appealing [because]
he was 'sentenced in accordance with the terms and conditions set
forth

in

the

Sentence

Recommendation

provisions'

of

the

Agreement," pursuant to the agreement's waiver of appeal clause.
Id. at 88.

Paragraph 7 ("Sentencing Guidelines Calculations") of

that agreement included a chart that calculated the total offense
level

to

be

25.

Id.

at

88.

Paragraph

8

("Sentence

Recommendation") then provided that "the defendant may argue for
the lower end of the applicable guideline range and the government
may argue for the higher end of the guideline range applicable to
defendant's Criminal History Category[.]" 3

We interpreted the

agreement to mean that "for the defendant to have been sentenced
in

accordance

with

the

terms

of

the

sentence

recommendation

provisions, he would have had to be sentenced within a [guideline

3

Although
corresponding to
also included a
clause virtually

the chart only set out a sentencing range
a criminal history category of I, the Agreement
"no stipulation to criminal history category"
identical to Marchena-Silvestre's Paragraph 9.
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sentencing range] derived from an offense level of 25."
Nuñez, 771 F.3d at 88.
thirteen

months

Almonte-

Since the district court imposed a sentence

higher

than

the

high

end

of

the

guideline

sentencing range corresponding to a total offense level of 25 and
the highest possible criminal history category, "[i]t follow[ed],
as

night

follows

day,

with

the

conformity
provisions."

that

the

sentences

Agreement's

. . .

sentence

were

not

in

recommendation

Id. at 88.

The government also argued in Almonte-Nuñez, as it does
here, that "the defendant was sentenced in conformance with the
sentence recommendation provisions because those provisions did
not lock in a particular [guideline sentencing range]."
89.

Id. at

We responded by stating that "the Agreement unambiguously set

the offense level at 25 and barred arguments in favor of further
adjustments."

Id. at 89.

We similarly rejected the notion that,

since the district court retained ultimate sentencing discretion,
the

government

could

shift

occurred at the hearing.

its

recommendation

Id. at 88-89.

based

on

what

And we noted that, "[w]ith

minimal effort, the government could have drafted a waiver clause
having the effect that it unrealistically ascribes to the language
actually used in the Agreement."

Id. at 89 n.1 (citing United

States v. Isom, 580 F.3d 43, 51 (1st Cir. 2009) (considering an
appeal waiver provision that applied “if the sentence imposed by

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the Court is within the guideline range determined by the Court or
lower.” (emphasis supplied) (internal quotation mark omitted))).
So, the Agreement itself tilts heavily in favor of the
interpretation

that

Marchena-Silvestre

urges

we

adopt.

The

problem is that his own counsel--who presumably well understood
the Agreement--failed to object when the government recommended a
sentence outside the stipulated ranges.
forfeiture?

Or

was

it

instead

Was this an unwitting

extrinsic

evidence

that

the

Agreement should be read as the government applied it in fact
(albeit not as the government claims on appeal)?

This would seem

to be an issue on which many of the points for each side are owngoals.
We are tempted to rely on the standard of review as the
deciding factor, given the Supreme Court's guidance that "the
second prong of plain-error review . . . will often have some
'bite' in plea-agreement cases.
or

obvious.

Plea

Not all breaches will be clear

agreements

are

not

always

models

of

draftsmanship, so the scope of the Government's commitments will
on occasion be open to doubt."
129, 142 (2009).
sense in this case.

Puckett v. United States, 556 U.S.

But such a reliance offers little pragmatic
We are remanding for a new sentencing anyhow,

at which defense counsel this time will presumably insist on a
recommendation consistent with the chart in Paragraph 7 of the
Agreement.

Of course, the prosecution has common sense, too.
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cannot imagine that it will continue to use this same form to
document new plea agreements if it wants to argue for a sentence
in a range not reflected in the form.

We note, too, that in

another case before us the prosecution appears not to have pressed
for an interpretation of the agreement like that for which it
advocates here.

See United States v. Cirilo, No. 14-1793, at 2–3

(1st Cir. Sept. 24, 2015).

The difference between the ranges for

which the parties respectively argue in this case is not great, so
prudent counsel may well err on the safe side rather than create
a problematic, preserved issue for appeal.

In short, there is a

good chance that the issue will never arise again in this case,
nor in any future case should the government abandon its awkward
plea agreement template.

We therefore exercise our discretion not

to finally adjudicate the issue at this stage of this continuing
proceeding.
Finally, to leave room for the government to reassess
its position on remand, we direct that a different judge shall
preside over Marchena-Silvestre's sentencing proceedings.

The

possibility that the government breached the plea agreement, see
United States v. Kurkculer, 918 F.2d 295, 300 (1st Cir. 1990)
(stating this court's "repeatedly expressed . . . preference for
. . . resentencing before a different judge" when the government
breaches a plea agreement), and the fact that the judge appeared
to have made up his mind that Marchena-Silvestre deserved a six
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term

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without

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knowing

the

correct

Entry ID: 5943159

guideline

sentencing range, see Mawson v. United States, 463 F.2d 29, 31
(1st Cir. 1972) (per curiam) (explaining that "[i]t is difficult
for a judge, having once made up his mind, to resentence a
defendant"), counsel in favor of fresh eyes, "both for the judge's
sake, and the appearance of justice," id.

See also United States

v. Hanono-Surujun, 914 F.2d 15, 20 (1st Cir. 1990) (ordering that
resentencing occur before a different judge due to the district
court's failure to comply with a federal rule and its sharp upward
variance from the sentencing guidelines).
III.

Conclusion

Marchena-Silvestre's sentence is vacated and this matter
is remanded for resentencing before a different judge.

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